1. In this case, two points have been urged on behalf of the accused. The first point is that the learned Magistrate has not followed the mandatory provisions of Section 342 of the Criminal Procedure Code inasmuch as he failed to examine the accused before they entered upon their defence, and that the accused was examined after two of the defence witnesses were examined by the Magistrate. The learned Magistrate in his report says that 'the entries in the proceedings sheet of the statements of the accused after those of the defence witnesses are a clerical error which is regretted,'
2. The charge in this case was framed on November 5, and the accused were examined cm that day. Three witnesses on behalf of the prosecution were further examined and cross-examined on November 12 and two witnesses on behalf of the accused were examined on that day. According to the report of the Magistrate, the uccuued were examined after the prosecution witnesses were further examined, cross-examined and re-examined and before the accused's witnesses were examined in the case, We accept the report of the Magistrate, and, therefore, there is no irregularity as complained of on behalf of the accused; but even if the accused were examined after the defence witnesses were examined, we think it would be an irregularity which would not affect the merits of the case and would not prejudice the accused.
3. The second point taken on behalf of the accused is that one witness Meghji Mauji, Ex. 9, was examined by the Court on November 14, and that the accused were not examined under Section 342 to explain any of the circumstances which appeared in the evidence of this witness. Under Section 842 of the Criminal Procedure Code, 'the Court shall, for the purpose aforesaid, question the accused generally on the case after the, witnesses for the prosecution have been examined and before he is called on for his defence.' The witness, Ex. 9, cannot be said to be a witness on behalf of the prosecution for ho was examined by the Court under Section 540 of the Criminal Procedure Code. Under Section 540, a Magistrate can examine any of the witnesses after the evidence on both the aides has been taken and the case adjourned for judgment, inasmuch as the case is still n pending case when such evidence is taken. See In the matter of Amanda Chunder Singh v. Basu Mudh I.L.R (1896) Cal. 167. To the Maine effect is the decision in P C. Perumul, In re (1924) 25 Cri. L.J. 354. According to the view taken in Emperor v. Nathu Kashturchand I.L.R (1924) Bom. 42, : Bom. L.R. 105 the stage in the trial prescribed by Section 342 of the Criminal Procedure Code, when the accused has to be questioned generally on the case for the prosecution, is after the prosecution evidence is complete, that is to say, after the accused, against whom a charge has been framed, has cross-examined the witnesses for the prosecution. Under Section 540 the Court can examine a witness at any stage of the trial, that is to say, even after the stage at which the accused has to be examined under Section 342 has passed and after the accused has closed his case, and before he is called on for his defence. In the present case, on November 12, all the prosecution witnesses were examined and some of the accused's witnesses were examined on that day, after the accused were examined under Section 342 of the Criminal Procedure Code. The witness on behalf of the Court was examined on the 14th under Section 540. There is no provision in the Code which makes it obligatory on the Court to again examine the accused in order to give him an opportunity of explaining the circumstances appearing against him in the deposition of a witness examined by the Court under Section 540 of the Criminal Procedure Code after the accused has examined all his witnesses and closed his case. Reliance has been placed by Mr. Rule on the decision in the case of Emperor v. Narayan Keshav : (1928)30BOMLR651 . That decision, however, refers to additional evidence which was ordered to be taken after the trial was over, under Section 428 of the Criminal Procedure Code, but some of the remarks in the judgment would apply to the present case. There is no provision in the Code requiring the accused to be again examined after the deposition of a witness examined under Section 540 of the Criminal Procedure Code. Though the Court might in its discretion examine the accused in order to explain the circumstances appearing in the evidence of a witness examined by the Court after the case was practically closed, it is not obligatory on the Court to do so. We think, therefore, that there is no illegality committed by the Court in not examining the accused after the examination of Ex. 9. Further, we think that the evidence of this witness favours the accused rather than the prosecution, and the accused cannot be said to be in any way prejudiced by the failure to examine the accused after the examination of the witness Ex. 9.
4. On these grounds we discharge the rule.
5. I concur.